Analysis
39 As I have noted, this appeal is focused on [31] of the Authority's Decision Record. As the primary judge correctly remarked (at J[68]), this paragraph must be read in the context of the preceding paragraphs of the Authority's reasons. It must also be understood in the context of the material that was before the delegate and, subsequently, the Authority under s 473CB(1) of the Act. This material included a transcript of the appellant's interview with the delegate, at which the appellant was assisted by his migration agent. The material also included a post-interview written submission provided by the same migration agent.
40 I commence with the transcript of the interview. At the start of the interview, the appellant was informed that it was his responsibility to raise all his claims for protection and to provide the evidence to support those claims. The appellant was warned that if his application for a protection visa was refused, he might not have another chance to provide further information to support his claims.
41 When the appellant's migration agent was asked whether there were any "updates" that needed to be provided to the Department, the agent stated that the appellant's wife, who is in Pakistan, is "really seriously sick". Further questioning elicited that the appellant's wife has "some problems with her bigger intestines", including bleeding. When asked whether the appellant's wife was receiving treatment, the agent informed the delegate that "she's being hospitalised and has been to hospital". The appellant added that his wife was "still under examination", that she was trying to "get an operation", and that she may be given "tablets or some other medications".
42 The appellant was asked a number of questions about his education and work history. This part of the interview is recorded over a number of pages of the transcript. At the end of the questions on this topic, the delegate said:
Okay. It seems to me that you could easily transfer your skills to another - your teaching skills, anyway, to another school or related institution in another part of Pakistan. But I am also conscious of the fact that you have worked in other industries and that if you didn't decide to pursue a career in education that you could pursue a career in an industry which you have had prior experience. Okay, so I'm going to give you 10 minutes now to speak to [your migration agent] whilst I'm out of the room. Take this time to make sure we've covered everything you wish to talk about.
43 When the interview recommenced, the appellant addressed the risks he said he would face if he returned to Pakistan. He made the following comment:
… If you are thinking about my relocation to another part of Pakistan, financially it will be very difficult for me to relocate myself there. It will be so hard to find accommodation and to find a job, and also there is a difference between skills and job transfer, or skill transfer. I might be able to transfer my skill but would not be able to find a job. Job finding is so difficult, unfamiliar with the area and with the people.
44 At the end of the interview, the appellant's migration agent made oral submissions, which included the following submission:
In terms of having six children, feeding those in a family, or having a sick wife, you know, access to hospital and all that, and not having suitable employment to find, it would be really unreasonable for my client to relocate in addition to being in danger from the side of the Taliban. ...
45 Following the interview, the appellant's migration agent provided a four-page written submission, which included the following:
… [the appellant's] prospects of finding employment are very low and remote. Hence, having a sick wife and six children and no employment to feed them and to pay for medical costs of his sick wife, it would be unreasonable for my client to relocate.
…
My client advises that in major cities like Islamabad, Lahore etc. the basic living costs, are extremely high. Thus, even if he is able to find some kind of employment, the costs of even basic living would far exceed his income, should my client relocate to other areas.
…
As mentioned during the interview, my client's wife is seriously ill and has been under medical treatment for the past few months. The costs of hospitalisation and medical treatment are high in Pakistan, and that would be an extra burden on my client, he advises. As he would not be able to afford the medical costs for the treatment of his wife, it is much possible that he could lose her, may God forbid, my client advises.
Thus, being in danger from the side of the militants, as well as, having no prospect of finding a shelter and employment, and high living costs, it would be impracticable and unreasonable for my client and his family to relocate to other areas in Pakistan.
…
46 In his Decision Record, the delegate noted that the appellant had provided post-interview submissions. The delegate's summary of those submissions included the following:
Relocation to another part of Pakistan would not be reasonable or practical due to a range of factors. These include his history with the Taliban and their widespread network. Also, his prospects of finding employment are very low due to being a Pashtun in [Location A]. His ongoing expenses (sick wife and six children) would make it unreasonable for him to relocate.
…
Furthermore, the cost of living in other parts of Pakistan is significantly higher than his home area. He would not be able to finance his life elsewhere as well as provide for his family's ongoing expenses (including his wife's medical bills).
47 The delegate found:
As discussed in his interview, the applicant has worked in various roles outside of teaching in a variety of industries (shopkeeping, wholesale trading, logistics & distribution, food delivery) in Pakistan and Australia from 2007 to now. The applicant revealed that prior to teaching, he opened his own shop in his home area and operated it for three years. As discussed in his interview, he has completed educational courses in Pakistan and Australia that are not related to teaching. I am therefore not satisfied that teaching is an immutable characteristic of the applicant. …
(Footnotes omitted.)
48 This finding was made in the context of the delegate considering whether the appellant satisfied the refugee criteria in s 36(2)(a) of the Act. The delegate's statement of non-satisfaction that "teaching is an immutable characteristic of the applicant" was directed to s 5J(3)(b) of the Act, which provides:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
…
(b) conceal an innate or immutable characteristic of the person; …
49 Overall, the delegate was not satisfied that the appellant faced a real chance of persecution in Pakistan if he were to return on the basis of being a former teacher who was obligated to assist with polio vaccinations.
50 In its Decision Record, the Authority noted that the appellant's main reason for leaving Pakistan was because of threats by the Taliban that related to his role as a teacher. The Authority dealt with this claim in considerable detail at [9] - [27] of the Decision Record, finding (as I have said) that the appellant faces a real chance of serious harm should he choose to return to his role as a teacher/polio worker in Location A.
51 Having reached that finding, the Authority turned to consider (at [28] - [30] of the Decision Record) the appellant's prospects of other employment in Pakistan, based on information which the appellant, himself, had provided:
28. However, the applicant has not been in his area or worked as a teacher or in relation to polio since approximately March 2013, a period of over six years. He has not suggested he has any particular or compelling interest to return to such work. He has not suggested he has attempted to engage in teaching or similar employment while in Australia. Moreover, he has diverse employment experience and skills obtained in both Australia (including in baking/as a process worker, food packing, at a chicken factory, as a Uber Eats driver, and having obtained a forklift licence and a security license), and Pakistan (including as the owner of a convenience store and as a sales person). I am satisfied he has acquired diverse transferable employment skills based on these experiences. …
29. In the context of considering the applicant's employment experience, the delegate considered whether the applicant's role as a teacher or in polio work was an immutable characteristic, which is relevant to the assessment of s.5J(3). The overall evidence including that outlined above satisfies me that the applicant would not resume his teaching/polio work role on return to Pakistan in the reasonably foreseeable future and that this is for a number of reasons. Given the continued targeting of teachers/polio workers which the applicant indicated his awareness of and the applicant's decision to stop this employment while in Pakistan due to his fear of harm at that time, I accept that part of the reason he would not resume this role on return to Pakistan would be due to his fear of harm. Moreover, the applicant has not indicated his wish to continue such work or similar work currently in Australia or any attempt to do so while in Australia. Nor does the evidence indicate that he has attempted to acquire further studies or skills while in Australia for six years that would support his return to teaching/polio work or advance his skillset in those roles. The outlined evidence indicates he does not have any particularly strong commitment to being an educator or polio worker. He has diverse employment experience and skills arising since his time in Pakistan including in Australia and this, along with the evidence on the nature of his past employment and the evidence that he has not solely relied on teaching/polio work for subsistence previously therefore indicates that the applicant would be able to support himself and his family through alternative employment. Such work has not been and is not currently central to his survival nor does the evidence indicate it would be on his return to Pakistan. The applicant ceased the role over six years ago and his evidence was that he previously acquired the teaching role through a favour through the village union. His obligation to perform the polio role in the past was premised on his role as a teacher. The evidence does not indicate that the applicant continues to hold any teaching role or that one would become available to him in the reasonably foreseeable future. Considering all of these factors, I find that the applicant would not resume teaching or associated polio work in Pakistan.
30. For the same above reasons including the lack of any credible claims or evidence that teaching/polio work are fundamental to the applicant, that he has not sought to engage in any similar work or related study in Australia, that he has not solely relied on teaching/polio work previously in Pakistan for his subsistence or committed to the role as his sole career path, that the applicant has diverse employment experience and skills which he could rely on to attain alternate employment that would enable him to subsist in Pakistan and because in any event the evidence does not suggest the role would currently be vacant to him or become available to him in Pakistan in the reasonably foreseeable future, it not apparent that taking steps to become employed in non-teaching/polio associated work in Pakistan and no longer working in those fields, would conflict with a characteristic that is fundamental to the applicant's identity or conscience, or require him to conceal or alter a religious or political belief, his nationality, country of origin or ethnicity, or an innate or immutable characteristic, or fall within one of the other modifications prohibited by s.5J(3). I am satisfied that due to the combination of the factors raised above, changing his employment is a reasonable step the applicant could take to modify his behaviour so as to avoid a real chance of harm and I am also satisfied that this would not amount to an impermissible modification of behaviour under s. 5J(3) of the Act.
52 These paragraphs provide the setting in which the Authority made its finding, and accompanying comments, in [31] of the Decision Record.
53 It is apparent that, when seen in this setting, [31] continues with the Authority's observations on the appellant's employment prospects in Pakistan. The paragraph notes the fact that the appellant referred to his wife being seriously ill - a reference, plainly, to the information given during the appellant's interview with the delegate and, later, in the post-interview submission. The paragraph notes that the appellant did not provide documentary evidence of his wife's current medical condition or treatment, and that he did not provide evidence to indicate the extent of her medical costs or that he would be unable to bear those costs should he return to Pakistan.
54 The essential finding in [31] is that the Authority was not satisfied that the appellant faces a real chance of harm if he returned to Pakistan. In reaching that finding, the Authority made clear - by referring to the appellant's subsistence - that it was taking into consideration s 5J(5)(d) of the Act which stipulates that significant economic hardship that threatens a person's capacity to subsist is a form of "serious harm" relevant to the grant of a protection visa.
55 Thus, [31] of the Decision Record includes a finding that, on the information provided by the appellant, the Authority was not satisfied that, if he did return to Pakistan, the appellant would face significant economic hardship that would threaten his capacity to subsist. This was because, on the Authority's assessment of the known facts, the appellant had the ability to access employment in Pakistan other than as a teacher, and earn a living, even taking into account his wife's medical expenses, whatever they might be. It is to be understood that the appellant's wife was already in Pakistan, receiving medical attention and, no doubt, already incurring, and facing the future costs of, that attention, regardless of whether the appellant returned to Pakistan.
56 As to the questions around which the appellant has framed his appeal, I do not accept the starting point for his first question, which is that the Authority considered his wife's medical expenses to be a "significant" issue. In [31] of the Decision Record, the Authority was doing no more than recording, in a summary way, the information which the appellant chose to advance to support his claim that he is a person in respect of whom Australia has protection obligations as a refugee. As the Minister submitted below (J[62] - [63]), and as the primary judge accepted (J[66]), it was for the appellant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case.
57 It can be readily accepted that the Authority did not know the appellant's wife's actual medical expenses, or her likely future medical expenses, in Pakistan. However, this is because the appellant advanced his claim, in that regard, at a high level of generality. The Authority dealt with this aspect of the appellant's claim with commensurate generality. Thus, the appellant's submission that the Authority knew that it did not have actual information of the appellant's wife's medical expenses does not advance the appellant's case that there is appealable error in the judgment below.
58 As to the second question, it can be accepted, also, that, at [31] of its Decision Record, the Authority did not state, expressly, that it had considered whether it should exercise its power to obtain "new information" in relation to the matters noted at [8] above. However, contrary to the appellant's submission, I do not accept that this fact stands as "positive evidence" that the Authority did not turn its mind to whether it should seek to obtain this "new information".
59 Further, the appellant has called into question the correctness of the Full Court's reasoning in ASB17. I am not persuaded that this reasoning should not be followed. I accept that the Authority's statement that "[n]o further information has been obtained or received" might be addressing the injunction in s 473DD of the Act. But it does not follow that the statement is not also one that indicates that the Authority did turn its mind as to whether, pursuant to s 473DC(1) of the Act, it should get "new information". I am persuaded that the statement does provide some indication that the Authority turned its mind to that question: see, in this connection, the similar finding in CMC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1358 at [94] - [95].
60 In this appeal, the Minister submitted that [28] of the Authority's Decision Record also suggests that the Authority turned its mind to whether further information should be obtained from the appellant. This is a reference to the Authority recording its satisfaction that the appellant had been given an opportunity to discuss his beliefs on education and polio work. The appellant submitted that, by exclusion, this reference indicates that the Authority did not turn its mind to seeking "new information" on the matters noted at [8] above.
61 I do not think that much can be made of [28] of the Authority's Decision Record on this question. What is more important is the fact that, in giving its decision on the review, the Authority was not required to give reasons for the exercise or non-exercise of a procedural power, such as that conferred by s 473DC(1). It follows that the mere failure of the Authority to mention the discretion conferred by s 473DC(1) cannot support the drawing of an inference that the exercise of the discretion was not considered: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 (BVD17) at [16] and [40]; EAT17 v Minister for Home Affairs [2021] FCA 68 at [59] - [62].
62 I am not satisfied that the appellant has established that the Authority failed to consider whether it should exercise its discretion under s 473DC(1) of the Act to get new information either generally or in relation to the matters noted at [8] above. To this extent, Ground 1 of the appeal fails.
63 It is convenient, at this point, to direct attention to Ground 2 of the appeal, which is that the primary judge erred by not dealing with this aspect of the appellant's case. I do not accept that contention, for the following reasons.
64 At J[25] - [40], the primary judge summarised the appellant's submissions concerning the Authority's finding that it was not satisfied that there would be a threat to the appellant's subsistence if he returned to Pakistan and modified his employment. At J[42], the primary judge noted that the appellant's case before him was, essentially, the failure of the Authority to consider asking for "vital information" which the Authority deemed relevant but did not have, and which the appellant could have easily provided.
65 At J[57] - [58], the primary judge recorded the Minister's submission that the appellant could not discharge his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1) of the Act and that, as a consequence, it fell to the appellant to establish that it was legally unreasonable for the Authority not to have obtained further information from him. At J[59] - [65], the primary judge recorded the Minister's submission that the appellant had not demonstrated that it was legally unreasonable for the Authority not to obtain "new information" from the appellant in relation to the matters noted at [31] of the Decision Record.
66 At J[66], the primary judge stated that he preferred the Minister's submissions in relation to the single ground of review that had been raised. By that statement, I understand the primary judge to have accepted all of the Minister's submissions referred to above. In other words, the primary judge's preference for the Minister's submissions included acceptance of the submission that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1). If that understanding of the primary judge's reasons be correct, then Ground 2 of the appeal fails.
67 The Minister advanced a different understanding of J[66]. While maintaining the position that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1), the Minister submitted that the primary judge's reasoning did not turn on that fact. The Minister submitted that, even if the Authority did fail to consider exercising the discretion in s 473DC(1), there could only be jurisdictional error if such failure was unreasonable. The Minister submitted that the primary judge dealt with this aspect of the appellant's case by finding that it was not unreasonable for the Authority not to seek the further information identified by the appellant.
68 Whilst I accept that the primary judge certainly reached that conclusion at J[70], I nevertheless remain of the view that, by expressing his preference at J[66] for the Minister's submissions, his Honour also accepted the submission that the appellant had not discharged his onus of establishing that the Authority failed to consider exercising the discretion in s 473DC(1) of the Act.
69 This then leads to the third question - namely, if the Authority did fail to consider whether it should exercise its discretion under s 473DC(1) of the Act, was its failure unreasonable. It seems to me that this question, and the fourth question - whether it was unreasonable for the Authority not to exercise its discretion - raise, in substance, the same question of unreasonableness.
70 In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, Gageler, Keane and Nettle JJ said (at [21]):
21 There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration & Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
(Footnotes omitted.)
71 The appellant's submissions in relation to the third and fourth questions focus on what he says are the different bases on which the delegate, on the one hand, and the Authority, on the other hand, reached their respective decisions. They also focus on the sequential proposition that he could not have anticipated the Authority's decision from the delegate's decision, and therefore should not be criticised for not providing more information to the Authority in support of his claim to protection.
72 This focus does not directly engage with the appellant's contention that the Authority acted unreasonably in failing to consider whether to exercise the discretion in s 473DC(1) to get new information (the third question), or the alternative contention that the Authority acted unreasonably in not exercising its discretion to get new information (the fourth question). Indeed, the appellant's submissions on the third question and the fourth question tend to direct attention away from the way in which the appellant advanced his claims before the delegate.
73 Returning to the matters I have summarised at [40] - [45] above, it is clear that, at the interview, the delegate had formed the provisional view that the appellant could deploy his teaching skills in another part of Pakistan. He also formed the provisional view that the appellant could deploy his acquired skills in pursuing other employment, outside teaching. The appellant was invited to comment on these provisional views, and given time to do so.
74 After taking that opportunity, the appellant's response was that, if the delegate was thinking that the appellant could relocate to another area of Pakistan, it would be financially difficult for him to do so. Further, insofar as the delegate had contemplated that the appellant could transfer his skills to other employment, it would be difficult for the appellant to find another job. The appellant, through his migration agent, submitted that it would be unreasonable to think that the appellant could do these things (relocate and pursue employment outside teaching) having regard to the need to look after his family, including his sick wife.
75 These matters were repeated in the written submissions provided to the delegate after the interview - in substance: it would be difficult for him to find employment; he would face significant living costs (including his wife's medical costs) if he were to relocate; and, if the appellant were to relocate and find other employment, his costs would exceed his income. These matters were accurately summarised in the delegate's Decision Record: see [46] above.
76 It is clear that the appellant was contending that he would not be able to subsist if he relocated to another part of Pakistan and attempted to pursue alternative employment. This was how the Authority, in undertaking its review, understood this aspect of the appellant's claim to protection. Unfortunately for the appellant, the Authority did not accept that the appellant would not be able to relocate and pursue alternative employment. At a more general level, the Authority did not accept that the appellant would face significant economic hardship that would threaten his capacity to subsist.
77 There can be no doubt that it was for the appellant to advance sufficiently detailed claims, and supporting evidence, to satisfy the Authority of his case: s 5AAA of the Act; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 at [57]. As I have previously remarked in relation to the question of the appellant's wife's medical costs, the appellant advanced his claim, in that regard, at a high level of generality, which the Authority considered with commensurate generality. The same is true of the appellant's representations concerning the difficulty facing him in relocating and pursuing alternative employment, and his representations concerning his living expenses generally, including the need to look after his family (including his sick wife).
78 The issue raised by the third question and the fourth question is not whether it was open to the Authority to seek further information, or whether it would have been reasonable for the Authority to do so. The question is whether it was legally unreasonable for the Authority not to seek the information noted at [8] above in all the circumstances of the case bearing in mind the nature of its review function under Part 7AA of the Act. In other words, in not exercising the discretionary power under s 473DC(1) of the Act to seek that information, was the Authority acting unreasonably in the sense that, for example, its conduct lacked a rational foundation or an evident or intelligible justification, or was plainly unjust, arbitrary, capricious, or lacking in common sense?: CCQ17 at [51]. I am not persuaded that the Authority's non-exercise of that power was of that character. It follows that I am not satisfied that the primary judge erred in coming to the same conclusion and in holding that the appellant had not established jurisdictional error in the Authority's decision.
79 Further, and for completeness, I do not accept that the appellant could not have anticipated the Authority's decision from the delegate's decision. That is because the Authority dealt with the appellant's claim to protection precisely in the way in which the appellant advanced that claim before the delegate.